Opinion
No. 29816
Decided May 24, 1944.
Negotiable instruments — Warrant of attorney to confess judgment — Joint and several authorization as to makers — Authority applies to any or all makers — Death of one maker does not revoke warrant as to surviving maker.
1. A warrant of attorney in a promissory note authorizing "any attorney at law to appear in any court of record * * * and waive the issuing and service of process and confess a judgment against any or all of the undersigned" is a joint and several authorization as to the makers.
2. Such warrant authorizes the entry of appearance, waiver of process and confession of a judgment as to any or all of the makers.
3. The death of one of the makers of the note does not revoke such warrant of attorney as to any surviving maker.
CERTIFIED by the Court of Appeals of Cuyahoga county.
On April 24, 1931, Eugene and Mabel B. Lamos, husband and wife, executed the following cognovit note payable to the defendant, The Cleveland Trust Company:
"Willoughby, Ohio, April 24, 1931
"$1,800.
"For value received the undersigned jointly and severally promise to pay to the order of The Cleveland Trust Company of Cleveland, Ohio Eighteen Hundred Dollars ($1,800.00) at its office in Cleveland, Ohio in instalments as follows:
$25 on or before the 15th day of June, 1931; $25 on or before the 15th day of September, 1931; $25 on or before the 15th day of December, 1931; and the balance of said principal one year from date; with interest thereon at the rate of six per cent per annum, payable quarterly on the 15th day of March, June, September and December of each year, until paid.
"In event of default in the payment of interest or instalments of principal when the same become due, then at the option of the holder of this note, said interest and balance of the unpaid principal shall bear interest at the rate of eight per cent per annum, payable quarterly until paid, notice of the exercise of such option being expressly waived.
"And further in event of any default in the payment of any instalment of interest or principal on this note, when the same becomes due, or in any of the conditions or stipulations of the mortgage securing same, then at the option of the holder of this note, the entire amount of principal and interest remaining unpaid shall at once become due and payable without notice; and the undersigned hereby authorize any attorney at law to appear in any court of record in the State of Ohio or any other state or territory of the United States after the above obligation becomes due and waive the issuing and service of process and confess a judgment against any or all of the undersigned in favor of The Cleveland Trust Company or any holder of this note, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.
"(Signed) Eugene Lamos "Mabel B. Lamos."
About one year later on May 2, 1932, Eugene Lamos, the husband, died.
Nine years thereafter on May 14, 1941, the defendant, The Cleveland Trust Company, obtained a judgment by confession against Mabel B. Lamos alone as a maker of the note. An execution was issued on the judgment, and a levy was made on certain realty owned by Mabel B. Lamos. Likewise, a certificate of judgment lien was duly filed with the clerk of courts.
One month later on June 16, 1941, Mabel B. Lamos by a quit-claim deed conveyed the realty to her then husband, Benjamin F. Frey, who is the plaintiff in this action in which he seeks to quiet his title from the defendant's judgment lien.
To the plaintiff's petition the defendant, The Cleveland Trust Company, filed an amended answer and cross-petition asking that the realty be sold and that its judgment lien be paid from the proceeds.
The issues were joined by the filing of a reply by the plaintiff.
Thereafter the Court of Common Pleas granted a motion by the plaintiff for a judgment on the pleadings.
Upon an appeal by the defendant to the Court of Appeals on questions of fact and law, the appeal was dismissed on questions of fact and law and retained on questions of law alone. That court then reversed the judgment of the trial court and rendered a final judgment for the defendant.
The Court of Appeals also certified the case to this court for review and final determination on the ground that its judgment is in conflict with that of the Court of Appeals of the Ninth Appellate District on the same question in the case of Saulpaugh v. Born, 22 Ohio App. 275, 154 N.E. 166.
Mr. Harry A. Blachman and Mr. Cleveland J. Suffens, for appellant.
Messrs. Cummings, Mook, Strong Douglas and Mr. C.E. Orcutt, for appellee.
The single question presented by the plaintiff relates to the nature of the warrant of attorney in the cognovit note. If it is joint and several the judgment of the Court of Appeals must be affirmed; but if it is merely joint the defendant's judgment lien is invalid and there must be an affirmance of the decree of the Court of Common Pleas quieting the plaintiff's title to the realty on which the levy was made.
It is the contention of the plaintiff that the warrant of attorney authorizes the entry of appearance, waiver of process and confession of a judgment as to both Eugene and Mabel B. Lamos but not as to one alone, and that therefore as soon as Eugene Lamos died all authority under the warrant was revoked. As his basis for this view the plaintiff relies upon the particular language of the note that the makers authorize any attorney at law "to appear in any court of record * * * and waive the issuing and service of process and confess a judgment against any or all of the undersigned * * *." He insists that technically in order to make this warrant of attorney joint and several it would be necessary to add the italicized words authorizing any attorney at law "to appear in any court of record for any or all of the undersigned * * * and waive the issuing and service of process for any or all of the undersigned and confess a judgment against any or all of the undersigned * * *." In other words, the plaintiff contends that although a judgment may be confessed against any or all of the undersigned," there can be no appearance or waiver except for both makers of the note.
This view fails to take into consideration the fundamental rule that a negotiable instrument must be read in its entirety in order to ascertain the intention of the parties. The very first sentence of this note contains the signficant language that "the undersigned jointly and severally promise to pay." (Italics supplied.) Likewise, in the concluding sentence it is provided that a judgment may be confessed "against any or all of the undersigned." (Italics supplied.) This unambiguous language leaves nothing to inference. Clearly the liability of the makers is joint and several. Furthermore, there is nothing in the context to require the repetition of language as suggested by the plaintiff. The warrant of attorney is unbroken by punctuation in providing that (1) the appearance, (2) the waiver and (3) the confession may be as to "any or all."
The plaintiff relies upon the decision of this court in the case of Hoffmaster v. G.M. McKelvey Co., 88 Ohio St. 552, 106 N.E. 1061. However, in that case the particular language of the note in marked contrast provided merely for the confession of a judgment "against us," thus making the liability joint rather than joint and several.
An annotation and citation of pertinent cases appear in 89 A.L.R., 403.
The judgment of the Court of Appeals is correct and must be affirmed.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.